Chapman v. Commonwealth

• Citation: 66 Va. 721
• Court: Supreme Court of Virginia
• Decision Date: 21 January 1875
• Parties: CHAPMAN & als. v. COMMONWEALTH.

66 Va. 721

CHAPMAN & als. v. COMMONWEALTH.

Supreme Court of Appeals of Virginia.

January 21, 1875

I. In April 1870 S was appointed sheriff of C, and gave bond and qualified; and he was to continue in office until his successor was elected and qualified. In November 1870 J was elected sheriff for the next year, but failed to give the bond. On the 13th of February 1871 the County court of C appointed S collector of taxes & c. of 1870, and he gave bond with sureties and qualified. HELD:

1. The County court was authorized to make the appointment and take the bond; and it is a valid bond, and binds the sureties.

2. The County court having made the appointment, and S and his sureties having executed the bond, they are estopped from denying that it is valid and binding upon them.

II. S collects a part of the taxes of 1870, and pays it to the auditor prior to the 13th of February 1871, directing it to be applied to his inebtedness for taxes of 1869, which is done by the auditor, he not knowing that the money was derived from that source. All the rest of the taxes of 1870 are properly accounted for; but there is a deficit in the account of S to the amount so collected and paid. The sureties are liable for the deficit.

III. A payment by a debtor who owes several debs to a creditor is to be applied to one or the other of the debts as follows:

1. The debtor may direct the application at or before the time of making such payment; and such direction may be given expressly or by implication.

2. If the debtor gives no such direction, then the creditor may make the application according to his pleasure; and he may make it either at the time of such payment or afterwards before the commencement of any controversy on the subject but after he has once made the application, he cannot change it to another, without the consent of all the parties concerned.

3. Such application by a creditor may also be made either expressly or by implication. If he enters the debits and credits in a general account, as they occur, this will be considered, in the absence of evidence to the contrary, as a general application of the credits to the debits, in the order of time in which the debits occur; thus paying first the debt first due.

4. If neither the debtor nor the creditor make the application then the law will make it according to the circumstances of each particular case; and if there be no other controlling circumstance, the application will be made according to the order of time, paying first the oldest debt.

5. But if the debts be due by a collector or other receiver of public money, under bonds with different sets of sureties then the law will so apply the payments, if possible, as that the money collected under one bond shall be applied to the relief of the sureties in that bond. And the creditor in such a case, if he be informed as to the source from which the money with which a payment may have been made was derived cannot apply it otherwise, even with the consent or by the direction of the principal debtor.

Alexander Scott seems to have acted as sheriff of the county of Caroline in 1869, under military appointment. On the 11th of April 1870, he was appointed by the County court, sheriff of said county, to continue in office until his successor should be regularly elected and qualified, and he executed his official bond with sureties, and took the oath of office; and John H. James, who was elected sheriff of the county in November 1870, having failed to give bond and qualify, Scott continued to be sheriff, and acted as such, until the 1st of January 1872. On the 13th of February 1871, the County court of Caroline made an order that a vacancy having occurred in the office of sheriff or collector of taxes, levies and officers' fees, by reason of his (John H. James') failure to give the bond required by the act of the general assembly, passed on the 6th day of last month, the court appointed Alexander Scott to be collector of taxes and levies for the last year, and of any officers' fees which may be placed in his hands for collection, collectable during the present year; and thereupon said Alexander Scott subscribed and took the oaths prescribed by law, and entered into and acknowledged a bond in the penalty of $30,000, conditioned according to law, with James A. Chapman (and eleven others named) as his securities, & c.

The condition of the bond is, that by reason of a vacancy in the office of sheriff of this county as collector of taxes, in pursuance of the act of the general assembly passed February 6, last, the court appointed Alexander Scott to be the collector of taxes, levies and officers' fees for the present year. Now if the said Alexander Scott shall faithfully discharge the duties of his said office, during his continuance in office, then the above obligation to be void, else, & c.

It appears that on the 20th of December 1870, the books of the commissioner were delivered to Scott; and that George W. Marshall, who was elected treasurer of the county on the 12th of December 1870, went into office on the 1st of January 1871, and continued in office during the entire year. And it further appears that Scott collected of the revenue of Caroline county for 1870, previous to the 13th of February 1871, the two sums of $2,915 and $380, which said sums were, during the month of January 1871, paid by Scott to the auditor, and credited by the auditor according to Scott's directions, the first upon his indebtedness for the taxes of 1869, and the other was put to his credit on license taxes; and that the bond of Scott as collector was not sent to the auditor of public accounts, by the clerk of Caroline county, until some time after the 3rd of March 1873. And it further appears that after the 13th of February 1871, in the years 1871-'72 and 1873, Scott paid into the treasury $15,382, which, with the delinquent taxes for which he was allowed credit, made up the amount of the land, property and capitation tax of the year 1870, in the county of Caroline, except the sums above mentioned. And the liability of the sureties in the bond of the 13th of February 1871, for these sums collected and paid into the treasury before the execution of that bond, was the only question in the cause. It did not appear that the auditor knew that the money paid into the treasury by Scott, was from moneys collected for taxes of the year 1870.

In January 1874, the auditor of public accounts gave notice to Scott and his sureties in the bond of February 13th, 1871, that he would move in the Circuit court of the city of Richmond, for judgment against them on account of the land, property and capitation taxes of the year 1870, due from Scott, late collector of taxes of Caroline county, and also for damages and interest thereon according to law, and for costs.

The case came on to be heard on the 21st of February; and the evidence having been introduced, the defendants moved the court to reject said bond of Scott as collector, and dismiss the motion of the commonwealth on said bond, among others for the following reasons:

1st. Because the said bond was invalid, null and void; because the court, under the law, did not have the power and authority to appoint such collector, and take such bond for the collection of said revenue for the year 1870.

2d. Because the auditor had no evidence in his possession, and produced none to the court, showing that Scott, as collector as aforesaid, ever received the books of the commissioners of the revenue for the taxes of the year 1870, or that the auditor had ever known that said Scott had executed any bond as collector until after the month of March 1873, or that said Scott ever performed any duties or incurred any liability by virtue of his appointment and qualification as such collector, before the said auditor received said bond. This motion the court overruled; and the defendants excepted.

The defendants then moved the court to give to Scott, collector as aforesaid, credit, first, for the sum of $2,915, proved to have been collected by said Scott previous to the 13th of February 1871; second, by the delinquent lists and payments made to the auditor subsequent to the 13th of February 1871, on account of said land, property and capitation taxes of 1870. This motion the court overruled as to the $2,915; but having given the other credits rendered a judgment in favor of the commonwealth, against Scott and his sureties for $3,318.31, for the balance of the land, property and capitation taxes of the year 1870, with interest at twelve per cent. per annum from the 11th of August 1871, until paid, and $505.24 for damages according to law. The defendants again excepted; and all the evidence was spread upon the record. And thereupon James A. Chapman and the other sureties applied to this court for a writ of error and supersedeas to the judgment; which was awarded.

Meredith & Cocke, for the appellants.

The Attorney General, for the commonwealth.

OPINION

MONCURE, P.

This is a supersedeas to a judgment of the Circuit court of the city of Richmond in favor of the commonwealth against the plaintiffs in error, Alexander Scott and others, for $3,318.31, balance of the land, property and capitation taxes of the year 1870, due from the said Alexander Scott, late collector of taxes, & c., for Caroline county, with interest, damages and costs.

The judgment was recovered by motion on a bond of the said plaintiffs in error, the said Scott and his sureties, dated the 13th day of February 1871, in the sum of $30,000, with condition thereunto annexed in these words:

" The condition of the above obligation is such, that whereas the above bound (Alexander Scott) by reason of a vacancy in the office of sheriff of this county, as collector

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